Lord Mackay of Ardbrecknish: My Lords, I have already explained, in my answer to the question about medical evidence, that guidance is given to staff in regard to what they should do and what they should seek. That is one point.

The second point is that of course there is performance-related pay. I am afraid I cannot say off the top of my head at this Dispatch Box what the detail is of how it is arrived at, but by raising it the noble Earl clearly implies that officers of the Child Support Agency, knowing that the woman had good cause, would take the opposite decision simply in order to get cases out. I reject that. I am pretty certain that all the officers of the agency, as indeed all civil servants do, attempt to do their job to the best of their ability and to be fair to all the parties. I underline "all" the parties; not just the person in front of them, but also the taxpayer who stands behind all this. I must therefore reject the suggestion implicit in the noble Earl's question regarding the way in which officials of the agency work. Agency officials can take into account what the parent with care is saying. She has all the opportunities I mentioned to explain to the officers of the agency why she would be fearful and what she thinks her ex-partner might do to her if she were to give the agency details to allow them to pursue him for payment of maintenance. But they must make the judgment of whether that is reasonable. I have tried to explain that in those circumstances they give the parent with care the benefit of the doubt.

In regard to looking again at the process in practice, we have a working party looking at the requirement to co-operate and it is examining the process. If it gives any comfort to the noble Earl, I shall ask to have a discussion with them to satisfy myself that the answers I have given him are correct in relation to the way in which officials behave in this matter.

Earl Russell: My Lords, the Minister says that people are not influenced by financial incentives. Coming from a free market government I find that a little surprising. I have not for a moment been suggesting anything improper. The Minister must have heard the phrase "grey area". There are a great many decisions for which one can see defensible reasons for making them one way or the other, and if performance-related pay does not create an incentive to make decisions one way rather than the other, what on earth is it doing?

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I heard what the Minister said about the working party and welcome it. I ask him to think very carefully indeed about whether things really are working on the ground in the way that he thinks they are. There are large numbers of women throughout the country who are a great deal more reluctant to co-operate with the agency than they were when it first came into being and, from the Minister's point of view, that is not good news. But it is his problem. He will have to cope with it. I think I can leave him to it and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 5:

Before Clause 18, insert the following new clause:

("Appeal to the High Court: repeal of sections 22 to 25 of 1991 Act

.(1) Sections 22 to 25 of the 1991 Act (relating to Child Support Commissioners) shall cease to have effect.
(2) For the purpose of this section, "relevant decision" means any decision made under the 1991 Act or this Act by a relevant entity; and "relevant entity" means
(a) a Child Support Appeal Tribunal;
(b) a magistrates' court or a sheriff court; or
(c) in the case of a decision from which no appeal lies (directly or after a review) to a Child Support Appeal Tribunal or to a magistrates' court or a sheriff court, the Secretary of State or a child support officer.
(3) Any person affected by a relevant decision may (without any leave) appeal to the High Court, where such an appeal shall be assigned to the Family Division; or, in Scotland, to the Court of Session.
(4) The parties to such an appeal shall include the Secretary of State and the person with care and the absent parent under the assessment in question.
(5) On such an appeal, the court may
(a) correct any error of fact or law involved in the decision appealed from;
(b) itself exercise any discretion which had been exercised in the decision appealed from;
(c) make an appropriate order which may be consequential on the foregoing; and
(d) make any other order which it may consider necessary in order to prevent the operation of the 1991 Act or this Act from causing hardship or injustice to any person.
(6) For the avoidance of doubt, it is declared that subsection (5) (d) above enables the court to make an order which could not have been made by the entity whose decision is appealed from.
(7) Unless the court otherwise orders, the costs of all the parties to an appeal under this section shall be paid on an indemnity basis by the Secretary of State.").

The noble Earl said: My Lords, the Minister said just a few moments agoI think I have his words correctthat he hoped that the excuses for absent parents not to face up to their responsibilities will be peeled away. I am asking the Minister to have the courage of his convictions on that. I think we are all agreed that absent parents are responsible for the maintenance of their children. I think we are all agreed that they have to pay, in proportion to their means, what they can and as they can. The question is whether that is being achieved by this Bill or whether it is as disproportionate to actual ability to pay as was the poll tax. If the Minister's confidence is justified, then he need not be afraid of accepting this amendment, which allows an appeal to the High Court for those who are dissatisfied with their experience of the Act.

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Anyone who suffers a grievance will want redress. That is part of the human condition and it is part of the stuff of ordinary politics. Anyone who tries to go to the CSA and get any kind of sense by way of an answer out of it will get nothing. I remember how I felt when I once had to close a bank account in California. I needed the money urgently because it was owed to the Inland Revenue in this country. But over six months I received one computer-generated letter after another inviting me, now back in London, to attend seminars on house purchase in California. The only thing that got an answer out of that California bank was my London bank manager dressing up to look like a bailiff and going and sitting for two days in the bank's London head office until it did something.

Dealing with the CSA is a good deal worse than that. If one needs to get an answer out of the CSA one has to start by going through the Minister; and even then it is difficult. The Minister knows that himself. He knows how many such cases have come into his office. That is why this amendment provides for those who are aggrieved by the actions of the CSAand very many people areto be able to have their day in court and to give the court power to correct any error of fact or law involved in the decision.

That is a quite vital provision because it compels the CSA to answer before a higher authority. I say to the Minister that we are all concerned to discourage people from illegal forms of protest. No one in Parliament can possibly want to see those. But the desire to be able to try to find some kind of redress is a very deep one and it cannot be abolished. If we want to prevent people from seeking redress in illegal ways, of the kind none of us approves, we have to create legitimate outlets for grievancesand a legitimate appeal to a properly constituted court of law is such a recourse. It is far, far preferable to having people disturbing the peace and quiet of Ministers in the very small amount of time they ever get off work. That is one argument for the amendment.

The second argument concerns the powers of the CSA, which are fairly extreme. It sticks in my gullet to have that kind of power enjoyed by a body whose decisions, by its own admission, are very nearly 50 per cent. erroneous. I was going through my CSA papers over the weekend and came across a letter I had written before the gracious Speech to my honourable friend Liz Lynne, at her request. We were discussing among ourselves, when we were expecting in the gracious Speech a Bill to amend the 1991 Act, what would be the minimum terms we would need to find in that Bill in order to agree to the continuation of the 1991 Act. I offered my honourable friend three, and there were others which we do not need to go into now.

One was that the parent with care should never be below income support level because she was getting maintenance. We found on the maintenance disregard amendment that the Minister was not persuaded about that. The second was that the absent parent should never be below income support level because he was paying maintenance. That has not been achieved. My thirdthis is the one which is relevant to the amendmentwas

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that, whatever other departures and so forth there were, there should be a discretion to vary the formula in circumstances which no one had foreseen.

The noble Lord, Lord Renton, was quite right in the Renton Report that the draftsman can never foresee all circumstances. It is the weakness of the departure formula on which the Minister has relied that it can only ease the formula in situations which the draftsman happens to have foreseen. He can go on and on making more regulations but he cannot make the regulations until after the case has arisen. He cannot lock the stable door until after the horse has bolted. That is why this amendment also includes a power for the court, which is, of course, not an interested partyit is not judge and party in its own causeto make,

"any other order which it may consider necessary in order to prevent the operation of the 1991 Act or this Act from causing hardship or injustice".

On these Benches those were always the minimum conditions on which we would agree to the 1991 Act. I said that in this Chamber in 1991 and I have not changed my mind since. I have never understood that a tiny piece of exposure to evidence, to respect for an individual case, would actually wreck the Act. I believe that it would strengthen it. But if the Minister says that it would wreck the Act, that would be the worse for the Act. However, if he wishes to preserve the Act, I think he would be extremely wise to accept the amendment. I beg to move.

4.45 p.m.

Lord Simon of Glaisdale: My Lords, I venture to support this amendment. It brought back to my mind something that occurred in 1991, which those who were concerned with that Bill will recollect. The Bill as introduced allowed for an appeal either to a court of law or to an administrative tribunal. It was pointed out that the Government had to make up their mind what they wanted. Then there was a long, long pause between the Committee and Report stages. It was exceptional in that regard that the Bill was not hurried on so fast that there could not be discussion.

We all knew what that was due to and what was happening. There was an argument between the Lord Chancellor's Department and the Department of Social Security. As we expected, and entirely consonant with the 1991 legislation, the Lord Chancellor's Department, representing the rule of traditional law, was defeated. Appeals went to an administrative tribunal entirely consonantly with what the 1991 measure provided. Decisions were not to be made by a magistrates' court, as theretofor, were not to be made subject to appeals to the High Court, but were to be made by regulations, by administrative ukase, by officials applying an algebraic formula which no one claimed to understand; and if there was an appeal it was to go to an administrative tribunal.

In his amendment the noble Earl is trying to nudge us a little further back towards the rule of law. That is thoroughly satisfactory. I entirely agree with him that we really want to get rid of the 1991 Act; to provide

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appeals from a Magistrates' Court and to translate that court into a family court, as has been urged authoritatively time after time, and thus restore the rule of law in this respect. Failing that, it seems to me that what the noble Earl proposes is salutary.

The Minister has argued strenuously that what he recommends is right because it amounts to making absent fathers support their children as far as is reasonable. That was precisely the provision that was in the Summary Jurisdiction Act 1895. Perhaps I may be forgiven for egotism. I point to a decision of the Divisional Court during my time there. It was the decision in the Attwood case which was binding on magistrates and which they implemented.

We said that where there are two households in the place of one previously, the standard of living of both is likely to be reduced because one income has now to support two households and, frequently, two families. We said that although that might be so, the first wife and her children should never be relegated to a standard of life lower than that of the husband or any second family of his. Of course, one could only draw a broad picture because, naturally, where there are two households, the husband will inevitably tend to favour the second. The Minister is quite wrong in believing that he, his department and the Child Support Agency have invented any new principle or approach. That is not so. I support this amendment.